Lehmann v. Warren Webster & Co.

Mr. Justice Ball delivered the opinion of the court. First. Appellants say that after the two causes were consolidated, there was but one cause pending; and therefore, at the trial there could be but one verdict and one judgment; and hence the action of the trial judge in directing the jury to bring in two verdicts, one in each original case, and his action thereafter in entering two judgments against appellants, were reversible errors; and also that the instruction to the jury to bring in two verdicts was prejudicial to appellants. Here were two causes based upon the same contract, in which the plaintiffs in the one case were the defendants in the other, and vice versa. The evidence competent in one case was competent in the other. The primary object of the order of consolidation was that but one jury should be called and the evidence be produced but once in the disposition of both cases. ITad the court seen fit, in its discretion it might have compelled the parties to consolidate these cases for trial. (Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 292; Worthy v. Chalk, 10 Rich. (S. C.) 141; Land Co. v. Peck, 112 Ill. 408; Miles v. Danforth, 37 Ill. 156, 162.) The trial judge saw fit to interpret this order as consolidating these causes for trial, and to direct the jury to return a verdict in each case. The abstract does not show that appellants made objection or took exception to this action on the part of the learned trial, judge. Everything upon which error is assigned must appear in the printed abstract of the record. It is not the duty of an appellate tribunal to perform the work of counsel by examining the record for alleged errors which do not appear in the abstract filed in the cause. Douglass v. Miller, 102 Ill. App. 345, and cases cited; City Electric Ry. Co. v. Jones, 161 Ill. 48. Ho damages to appellants are alleged or shown to have resulted from the direction of the court to the jury to return a verdict in each case, or from the entry of a separate judgment in each case. We can not conceive how appellants "were thereby injured. All the costs which accompany the two judgments would have followed a single judgment in the consolidated case. The action of the court in these particulars, not having injured appellants, even though irregular, which we do not decide, is not cause for reversal. Where the rights of all persons are protected it is immaterial whether the cases were consolidated and a single verdict taken and a single judgment rendered therein, or were separately entitled and separate verdicts and judgments entered. In re Hodgman Est., 56 Hun, 648; In re Shipman’s Est., 82 Hun, 108; Land Co. v. Peck, 112 Ill. 408, 435. Second. Appellants contend that appellee did not make out aprima, facie case under its declaration, and therefore was not entitled to a verdict in its favor. There are two clauses in the contract, dated February 7, 1898, that are here material: “1. The terms of payment on this work are : Eighty-five (85) per cent of all labor and materials as the work progresses; the other fifteen (15) per cent of labor and material thirty (30) days after completion, the total of which shall not exceed twenty-nine hundred dollars ($2,900). The balance of the above named price ($1,083) is to be paid at the end of the present heating season, and upon the demonstration of the above guarantees.” “ 2. That we will make good any defect in workmanship, materials or effectiveness, that may be apparent within one year from completion of the apparatus without cost to you.” Under the latter clause, if the contract was substantially completed “ at the end of the present heating season,” then appellee had until February 7, 1899, “ to make good any defect in workmansh-ip, materials or effectiveness.” It is admitted that this steam heating plant was disconnected by appellants December 12, 1898. There is a serious conflict in the evidence as to whether or not this system was substantially completed before the close of the heating season in the spring of 1898. The determination of this question rested with the jury. They found by their verdict that it had been so completed. We have examined the record and think that finding is fairly supported by the evidence. TJ ndoubtedly this system was not as “ effective ” as was intended or as expected. Appellee, by its continued efforts during the fall of 1898, up to and including the date that appellants disconnected the system, impliedly admits this fact. But appellee, under the contract, had until February 7,1899, in which to make the system “ effective.” Until the expiration of that time, unless appellee abandoned the work (of which there is no sufficient proof), appellants had no right to disconnect the system. We have examined the instructions tendered by appellants, which were modified by the court before they were given to the jury. In these modifications there was no error. The first instruction given for appellee does not state the time in which the contract was to be completed. This omission is not reversible error, for the system was disconnected by appellants before the time given appellee by the contract in which to render it effective had expired. Hence such omission was immaterial. A party who prevents a thing being done within the time stipulated will not be allowed to avail himself of the non-performance he has himself occasioned, and thus avoid his agreement. People v. Holden, 82 Ill. 93; Marsh v. Kauff, 74 Ill. 189; Evans v. Chicago & R. I. Ry. Co., 26 Ill. 189; Western Union R. R. Co. v. Smith, 75 Ill. 496; Barton v. Gray, 57 Mich. 622. The judgment of the Circuit Court is affirmed.